MacDonald v. Downtown Health Club for Women, 2009 HRTO 1308

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lisa MacDonald

Applicant

-and-

Downtown Health Club for Women, Fulton Fitness and John Fulton

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: August 25, 2009

Citation: 2009 HRTO 1308

Indexed as: MacDonald v. Downtown Health Club for Women

Bifurcation

1In a prior Interim Decision, 2009 HRTO 1043, I set out a schedule for the parties to make written submissions on whether the hearing should be bifurcated to hear and determine the issue of liability separately from the issue of remedy, if any. Both parties opposed the bifurcation on the basis that it would be more expeditious to hear the evidence relating to both matters at the scheduled hearing dates.

2Accordingly, the hearing will proceed with respect to liability and remedy, if any, on November 30, and December 1, 2009, as scheduled, depending on the outcome of the outstanding preliminary objections.

Production

3In the prior Interim Decision, I deferred determining the respondents' request for production with respect to medical documents relating to the applicant's emotional response to the alleged discrimination until after the decision on bifurcation was made. I must now determine the production request.

4The respondents argued that the applicant has put her emotional and mental health at issue by claiming damages for mental anguish and therefore they are entitled to her medical records to explore whether the distress she suffered was due to reasons other than the alleged discrimination and to assess the applicant's mental state before and after the alleged discrimination. The applicant responded that she is not relying upon any medical evidence of mental anguish other than her own evidence and therefore her medical records are not relevant.

5The applicant is seeking substantial damages for emotional distress arising from the alleged discrimination. As I previously stated, in my view, the medical records of any treating practitioners may be arguably relevant to the issue of the applicant's emotional reaction to the alleged discrimination.

6Accordingly, the applicant is directed to produce the medical records from any treating physician with whom she discussed her emotional state for the six months prior to the alleged discrimination and the six months after the alleged discrimination, within 45 days of the date of this decision.

Request to reconsider the respondents' preliminary objections

7The respondents disagreed with my ruling in another Interim Decision, 2009 HRTO 1152, that I would not consider their preliminary objections prior to hearing any evidence on the merits.

8The respondents made extensive written submissions on the Tribunal's jurisdiction to hear the Application raising the interpretation of the term "sex" in the Human Rights Code, RSO 1990, c.H.19, as amended (the "Code"), the interpretation of section 20(1) of the Code and the meaning of section 2(d) of the Charter. The respondents have also raised issues relating to abuse of process and delay.

9I ruled that I have the discretion to determine and direct the order in which issues in a proceeding will be considered and determined (Rule 4.3(e)). In my view, many of the respondents' arguments are best dealt with after I have heard the evidence, so that my determinations can be grounded in a clear factual context. Accordingly, I ruled that I would not determine the issues raised in the respondents' July 20, 2009 submissions prior to the hearing, except for the arguments relating to section 11(d) of the Charter, abuse of process and delay.

10I see no basis to reconsider this interim ruling.

11The applicant filed her submissions on the respondents' preliminary issues on August 17, 2009. The Attorney General has not filed any submissions. However, the Ontario Human Rights Commission has purported to intervene and filed submissions on the issue of the applicability of section 11(d) of the Charter.

12In these circumstances, the timelines set out in my earlier Interim Decision are varied as follow. The respondents shall have 20 days from the date of this decision to file submissions responding to the applicant's submissions filed August 17, and to address whether the Tribunal should consider the Commission's submissions, and, in any event, to file its response to the Commission's submissions.